Lesson. Counterclaims for money damages arising out of alleged wrongful foreclosure actions likely will not be tried to a jury but rather the court.Case cite. Colvin v. Taylor, 233 N.E.3d 497 (Ind. Ct. App. 2024)Legal issue. Whether counterclaims filed
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Indiana Does Not Have Commercial Usury Laws
Apologies for the lack of content the past 30 days. Significant personal and business commitments have gotten in the way. I’m alive and well, however.Sometimes I’m asked whether Indiana has commercial interest rate caps or, in other words, whether there…
Material Alteration Defense: Surety Held Liable Despite Undisclosed Loan Modifications And Misuse Of Proceeds
Lesson. Indiana courts respect language in mortgages and generally will uphold contractual waivers of defenses.Case cite. Devlin v. Horizon Bank 235 N.E.3d 850 (Ind. Ct. App. 2024)Legal issue. Whether a surety should be released from liability because the lender…
Surety, Who Pledged A Mortgage To Secure An Ag Loan, Failed To Establish Impairment Of Collateral Defense
Lesson. A surety (a form of guarantor) has a high burden to prove some “unjustified or unreasonable act” by a lender in order to establish the so-called “impairment of collateral” defense. Case cite. Devlin v. Horizon Bank, 235 N.E.3d 850…
Sheriff’s Sale Surplus Goes To Owner/Borrower
My news feed this week produced this article from Fox59: Surplus Funds After Foreclosure: Key Facts and Recovery Options for Homeowners. The article is not state-specific, so I thought I’d build on the piece by commenting on Indiana…
Affidavit From Subservicer Employee Passes Hearsay Test For Original Lender’s Records
Lesson. Loan records created by the originating lender can be admissible in an assignee lender’s lawsuit. Case cite. King v. Nat’l Collegiate Student Loan Tr. 2006-4 232 N.E.3d 646 (Ind. Ct. App. 2024)Legal issue. Whether Lender’s designated loan records,…
In Indiana, Is “Piercing The Corporate Veil” An Independent Cause Of Action?
[Personal and professional commitments have prevented me from posting this past month. Rest assured that I and my beloved blog are alive and well. I wish you and your families a Happy Thanksgiving, and I appreciate you visiting this site,…
What Does “Accord and Satisfaction” Mean In The Context Of Cashing A Borrower’s Check?
Lesson. Even when a check is cashed and that check contains a notation that cashing it shall be considered “settlement in full” of a disputed debt, accord and satisfaction is not automatic. Case cite. Mayes v. Goldman Sachs Bank USA…
Expired Judgment Lien Must Be Renewed Before Foreclosure Can Occur
Lesson. Judgment creditor must obtain an order to renew an expired judgment lien before trying to execute on that lien. Case cite. Chitwood v. Guadagnoli, 230 N.E.3d 932 (Ind. Ct. App. 2024)Legal issue. Whether summary judgment for Plaintiff in…
Mortgage Lender Entitled To Attorneys’ Fees Despite Not Foreclosing Against Borrower
Lesson. Assuming a default, a defendant lender need not file a claim to enforce its loan against a borrower to recover attorneys’ fees incurred for litigation impacting its mortgage lien.Case cite. Edgerock Dev. LLC v. C.H. Garmong & Son Inc.…